Intestate Succession in California and Santa Clara County

Key takeaways

When someone in California dies without a will or trust, the California Probate Code (Sections 6400 to 6414) decides who inherits, not the family.

A surviving spouse or registered domestic partner gets all of the community property, but often only one-half or one-third of the separate property. The rest goes to children, parents, or siblings.

Intestacy only controls what’s left in the decedent’s name alone. Trust assets, joint tenancy property, and accounts with named beneficiaries pass outside of it.

In Santa Clara County, almost any house left without a plan ends up in probate at the Downtown Superior Courthouse in San Jose, because home values are far above the $750,000 limit for the simplified primary residence petition.

On a $2 million home, statutory probate fees alone can reach $66,000 before any real estate commission, and the process often takes a year or longer.

Prop 19, the step-up in basis, and the BOE-502-D filing deadline all apply to an inherited house, and they shape whether the heirs should keep it, rent it, or sell it.

Summary: California’s intestate succession rules hand out a person’s property in a fixed order when there’s no will: spouse first for community property, then a split between the spouse and children, parents, or siblings for separate property, then out through the wider family, and finally to the State of California if no relative can be found. For Silicon Valley families the house is usually the biggest asset in the estate, and with Santa Clara County home values where they are, dying without a plan almost always means a full court probate in San Jose, statutory fees in the tens of thousands, and a property tax picture that depends on who ends up with the home.

A lot of the probate work I do in Santa Clara County starts the same way. A parent passes away, the adult kids start looking for the will, and there isn’t one. Sometimes there was a trust that never got signed, or a will drafted thirty years ago that nobody can find. Either way, the family is suddenly dealing with something called intestate succession, and the first question I get is always the same: who actually gets the house?

The answer is set by law. The rules are in Sections 6400 to 6414 of the California Probate Code, and they apply the same way whether the family is in San Jose, Cupertino, Los Gatos, or anywhere else in the state. Below I’ve laid them out in plain English, corrected a few things that trip people up, and added what this means in practice for a house in Santa Clara County. I’m a REALTOR, not an attorney, so please treat this as a starting point for a conversation with a probate lawyer, not as legal advice.

What intestate succession covers (and what it doesn’t)

“Intestate” just means a person died without a valid will. When that happens, California’s intestacy statutes write the will for them. The important thing to understand is that these rules only reach property the person owned in their own name with no other transfer mechanism attached. A lot of what people own passes outside intestacy entirely:

Property held in a living trust goes to the trust beneficiaries, even if there’s no will. (If that’s your situation, see selling a house in a trust after death in Santa Clara County.)
Real estate held in joint tenancy passes automatically to the surviving joint tenant.
Community property with right of survivorship passes to the surviving spouse.
Retirement accounts, life insurance, and payable-on-death or transfer-on-death accounts go to the named beneficiaries.
A house covered by a properly recorded revocable transfer on death deed goes to the person named on the deed.

Everything else, which in my experience very often includes the family home, is distributed under the rules below. If you’re new to the vocabulary, my California probate glossary covers the terms you’ll hear from the court and the attorneys.

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Step one: is it community property or separate property?

California is a community property state, and the law treats the two types very differently when someone dies without a will. Community property is generally anything a married couple (or registered domestic partners) acquired during the marriage, wherever they earned it, plus quasi-community property, which is property acquired while living in another state that would have been community property had the couple lived in California. Separate property is what each spouse owned before the marriage, plus anything either one received by gift or inheritance, along with the income and proceeds from those assets.

This matters a lot for Silicon Valley homes. A house a couple bought together in Sunnyvale in 1985 is almost always community property. A house one spouse inherited from their own parents, or bought before the marriage, is usually separate property, even if the couple lived in it together for decades. Mixed cases, like a separate-property house paid down with community income, can get complicated and are worth an attorney’s opinion.

If there is a surviving spouse or registered domestic partner

Under Probate Code Section 6401, the surviving spouse keeps their own half of the community property and also inherits the decedent’s half. In other words, the surviving spouse ends up with all of the community and quasi-community property. Registered domestic partners are treated exactly the same as spouses. Unmarried partners, no matter how long they’ve been together, inherit nothing under intestacy.

Separate property is split depending on who else survived:

1. Surviving spouse, and no children, grandchildren, parents, brothers or sisters, or nieces and nephews

All separate property goes to the surviving spouse.

2. Surviving spouse and one child (or the descendants of one deceased child)

1/2 to the surviving spouse
1/2 to the child, or to that deceased child’s descendants

3. Surviving spouse, no children or grandchildren, but a parent survives

1/2 to the surviving spouse
1/2 to the decedent’s parent or parents, in equal shares

4. Surviving spouse, no children, no surviving parents, but brothers, sisters, nieces or nephews survive

1/2 to the surviving spouse
1/2 to the decedent’s brothers and sisters, with the share of a deceased sibling going to that sibling’s children

5. Surviving spouse and two or more children (or one child plus descendants of a deceased child, or descendants of two or more deceased children)

1/3 to the surviving spouse
2/3 divided among the children, with a deceased child’s share going to that child’s descendants

One example I see fairly often: Dad owned a Willow Glen house before he remarried, it stayed his separate property, and he dies without a will survived by his second wife and his two kids from his first marriage. His wife inherits one-third of the house and the two kids share two-thirds. Now three people who may not be close are co-owners of a San Jose property, and someone has to decide what to do with it. That’s a big reason these situations end up as probate sales.

If there is no surviving spouse

When there’s no spouse or registered domestic partner, Probate Code Section 6402 sends the entire estate down the following list. You stop at the first line where someone is alive to inherit, and that group takes everything.

Children, in equal shares. If a child died first, their children take that child’s share.
Parents, in equal shares.
Brothers and sisters, with a deceased sibling’s share going to their children (the decedent’s nieces and nephews).
Grandparents, in equal shares, or if none are living, their descendants (aunts, uncles, and cousins).
Descendants of a predeceased spouse (stepchildren and step-grandchildren).
The nearest next of kin.
Parents of a predeceased spouse, or their descendants.
The State of California, if no relative can be found. This is called escheat, and it’s rare, but it does happen.

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Rules that catch families off guard

The charts above are the core of it, but a handful of other rules come up again and again in estates that include a house.

The 120-hour rule. Under Section 6403, an heir has to outlive the decedent by at least 120 hours (five days) to inherit. If a husband and wife die in the same accident, or one dies a day after the other, each is generally treated as having died first for purposes of the other’s estate.

Shares are divided “per capita at each generation.” California doesn’t use the older per stirpes method by default. When some children have died and left kids of their own, the shares are pooled at each generation and divided equally among the people in that generation. This can produce different numbers than families expect, so let the attorney run the math.

Half-siblings and adopted children count fully. A half-brother inherits the same as a full brother, and an adopted child is treated exactly like a biological child.

Stepchildren usually don’t inherit directly. A stepchild only inherits from a stepparent under intestacy in narrow circumstances, generally where the relationship began while the child was a minor, continued for life, and there’s clear and convincing evidence the stepparent would have adopted them but for a legal barrier. Otherwise stepchildren only show up on line 5 of the list above.

The predeceased spouse rule. Section 6402.5 has a special carve-out. If the decedent had no spouse or descendants when they died, and their spouse died within the previous 15 years, real property that came from that earlier spouse can pass to the earlier spouse’s family instead of the decedent’s own relatives. This one surprises a lot of people, and it comes up with longtime Silicon Valley widows and widowers more than you’d think. A similar rule covers personal property if the first spouse died within five years.

What this means for a house in Santa Clara County

Knowing who the heirs are is only half of it. Here’s what typically happens next when a house is involved, and why the local numbers make such a difference.

Probate is almost unavoidable

California offers simplified procedures for small estates. As of April 1, 2025, a small estate affidavit covers personal property up to $208,850, and the newer primary residence petition covers a decedent’s home worth up to $750,000. Both thresholds are adjusted every three years, with the next adjustment due April 1, 2028. In most of Santa Clara County, though, those limits don’t help much. Single-family homes in San Jose, Santa Clara, Sunnyvale, and Cupertino routinely sell for well above $750,000, so a house left without a trust usually means a full probate.

In Santa Clara County, probate cases are heard at the Downtown Superior Courthouse at 191 North First Street in San Jose. The Santa Clara County Superior Court and the statewide California Courts self-help guide both have useful information for families getting started. With no will, there’s no named executor, so someone (usually the surviving spouse or an adult child, in the priority order set by Probate Code Section 8461) petitions the court to be appointed administrator. My step-by-step guide to selling a house in probate in Santa Clara County walks through the whole process, and this article on probate timelines covers how long each stage tends to take here.

The fees are based on the gross value of the estate

California sets statutory fees for both the administrator and the probate attorney: 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, and 1% of the next $9 million. Those percentages apply to the gross value of the estate, not the equity, so a mortgage doesn’t reduce them. On a $2 million house, that works out to $33,000 for the administrator and another $33,000 for the attorney, or $66,000 total, before any extraordinary fees or real estate commission. I break the numbers down further in probate fees and REALTOR commission on a Silicon Valley home. Families often waive the administrator’s fee when a family member serves, but the attorney’s fee still applies.

How the house gets sold

If the administrator is granted full authority under the Independent Administration of Estates Act, they can usually sell without a court confirmation hearing. With limited authority, the sale goes to a court confirmation hearing in San Jose where other buyers can overbid. I explain the difference in IAEA full authority vs. court confirmation and the probate overbid process in Santa Clara County.

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Property tax: Prop 19 and who ends up with the house

Who inherits under intestacy has a direct effect on property taxes. Under Prop 19, a child (or a grandchild whose parent has died) can keep a parent’s low Prop 13 tax base only if the home becomes the child’s principal residence within one year and the homeowners’ exemption is claimed. Even then, the protection only extends to the old assessed value plus an adjusted cap, which the California State Board of Equalization currently sets at $1,044,586 for transfers between February 16, 2025 and February 15, 2027. In a county where many longtime homes are worth $2 million or more, a child who moves in can still see a sizable partial reassessment.

Here’s where intestacy makes things harder. If the house passes to the decedent’s brothers, sisters, nieces, or nephews because there were no children, there’s no parent-child exclusion at all, and the Santa Clara County Assessor will reassess the property to full market value. When several siblings inherit and only one wants to move in, the exclusion gets even more complicated. My Prop 19 explainer and this article on sibling buyouts under Prop 19 go into the details.

Whoever ends up with the property also needs to file a Change in Ownership Statement (Death of Real Property Owner) with the Santa Clara County Assessor within 150 days of the death, or when the estate is probated. See my article on the BOE-502-D in Santa Clara County.

Income tax: the step-up in basis

Heirs generally receive a “stepped-up” tax basis equal to the home’s fair market value on the date of death, which can wipe out decades of appreciation for capital gains purposes. When a married person dies, California community property can receive a step-up on both halves, not just the decedent’s half, which is a big deal for a surviving spouse in a home bought decades ago. Read more in the community property double step-up and capital gains tax on selling an inherited house in probate. The IRS explains basis of inherited property in Publication 551, and a CPA should confirm the numbers for your situation.

When several heirs share the house

Intestacy rarely leaves the house to one person. More often it’s a spouse and stepchildren, or three or four siblings, or a dozen cousins. Those heirs have to agree on whether to keep, rent, or sell, and they often see the house very differently. If the estate distributes the property to them as co-owners and they can’t agree, any one of them can file a partition action, and California’s Partition of Real Property Act gives the other co-heirs a chance to buy out that share before a forced sale. In my experience, families do far better reaching a decision during probate with good information in front of them. I’ve written about whether to sell, rent, or keep an inherited house in Silicon Valley and about handling sibling conflict during a parent’s home sale.

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How to keep your own family off this chart

Everything above is what happens by default. You don’t have to accept the default. A revocable living trust is still the most common way Silicon Valley homeowners keep their house out of probate, and it lets you choose who inherits, who’s in charge, and how a house gets handled if your kids disagree. A will is better than nothing, though it still goes through probate. Some people use a revocable transfer on death deed for a single property, and married couples often hold title as community property with right of survivorship. The right answer depends on your family, so talk with an estate planning attorney. If you’d like a referral to one of the elder law and estate attorneys I work with in Santa Clara County, I’m happy to make an introduction.

If you’re already in the middle of this, with a parent who passed without a will and a house in San Jose, Los Gatos, Saratoga, or anywhere else in the county, I’d be glad to help you figure out what the house is worth, what your options are, and how the timing works with the court. That’s a big part of what I do as a probate real estate agent in Santa Clara County. You can book a call with me here, with no pressure and no obligation.

Frequently Asked Questions

Who inherits a house in California if there is no will?

It depends on whether the house was community or separate property and who survived. If it was community property, the surviving spouse or registered domestic partner gets all of it. If it was separate property, the spouse shares it with the children, parents, or siblings, taking one-half or one-third. With no spouse, it goes to the children, then the parents, then the brothers and sisters, and so on down the list in Probate Code Section 6402.

Does a surviving spouse automatically get the house in California?

Only if the house was community property, or if it was separate property and the decedent left no children, parents, siblings, or nieces and nephews. If the house was the decedent’s separate property and they had children, the spouse gets one-half (one child) or one-third (two or more children), and the children share the rest.

Do unmarried partners inherit under California intestacy law?

No. An unmarried partner has no inheritance rights under intestate succession, no matter how long the couple lived together. Registered domestic partners are the exception, since California treats them the same as spouses.

Do stepchildren inherit if there’s no will?

Usually not directly. A stepchild can inherit as if adopted only in narrow situations, generally where the relationship began while the child was a minor, lasted for life, and there’s clear and convincing evidence the stepparent would have adopted them but for a legal barrier. Stepchildren also come into the line of succession if the decedent left no spouse, children, parents, siblings, grandparents, or their descendants.

Does a house have to go through probate in Santa Clara County if there’s no will?

Almost always. California’s simplified primary residence petition only covers homes worth up to $750,000, and the small estate affidavit is limited to $208,850 in personal property. Most single-family homes in Santa Clara County are worth far more, so a house that isn’t in a trust, held in joint tenancy, or covered by a transfer on death deed typically goes through a full probate at the Downtown Superior Courthouse in San Jose.

How long does probate take in Santa Clara County?

A straightforward probate commonly takes nine months to a year and a half, and contested or complicated estates can take longer. The house can often be sold well before the estate closes, especially if the administrator has full authority under the Independent Administration of Estates Act.

Will the property taxes go up on an inherited house?

Usually, unless a child or eligible grandchild moves in. Under Prop 19, a child who makes the home their principal residence within one year can keep the parent’s tax base, up to an adjusted cap of $1,044,586 above the old assessed value for transfers through February 15, 2027. Homes that pass to siblings, nieces, nephews, or anyone else are reassessed to full market value.

Who serves as administrator when someone dies without a will?

The court appoints an administrator using the priority list in Probate Code Section 8461. The surviving spouse or registered domestic partner comes first, then the children, then grandchildren, and then other relatives. Someone with priority can also nominate another person, and heirs can sign waivers so one family member serves.

What happens if no relatives can be found?

If there’s no spouse and no relative can be located, even after searching through the predeceased spouse’s family, the estate escheats to the State of California. It’s uncommon, but it’s one more reason a simple estate plan is worth having.